Bloomberg Law
Sept. 29, 2020, 8:01 AM

Uptick in Telehealth Reveals Medical Malpractice Concerns

Lindsay Lowe
Lindsay Lowe
Wolfe Pincavage

Health-care providers are always susceptible to the risk of committing medical malpractice, but the rise in the use of telehealth services during the pandemic opens the door to unique concerns as providers rely on data, documents, images, and other information provided by the patient.

Providers may be held liable for breaching the standard of care if patients are harmed during telehealth visits, due to the provider’s negligent act or omission, miscommunication, misdiagnosis, software malfunctions or other technologically-based risks that threaten the patient’s welfare.

Generally, medical malpractice concerns arise where providers breach the standard of care owed to the patient and cause harm to the patient. Providers are bound by certain standards based on the patient’s health condition and treatment. These standards are recognized within the profession as being acceptable medical treatment provided by reasonably prudent health care professionals under like or similar circumstances. Whether care is rendered in-office, via telephone or web platform, providers owe a duty to their patients that must be met to protect and prevent against any form of malpractice.

Harm to patients may include disability, loss of income, unusual pain, suffering and hardship, or significant past and future medical bills. In consequence, providers could face civil or criminal liability due to medical malpractice, which may include revocation of the physician’s license, suspension of the physician’s practice of medicine, monetary penalties, or imprisonment.

Privacy, Misdiagnosis Concerns

One of the leading causes for concern with telemedicine is the provider’s ability to ensure that federal privacy and security rules are met. During the pandemic, the Department of Health and Human Services temporarily relaxed regulations under the Health Insurance Portability and Accountability Act, which permits physicians to communicate with patients on various video-conferencing platforms, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, and Skype.

The use of telehealth platforms presents a greater risk for data breaches of the patient’s protected health information, especially considering these video-conferencing apps do not comport with the typical requirements under HIPAA. Therefore, cyber-liability is of utmost importance as phishing scams and ransomware issues have increased 350% since the pandemic began.

Aside from privacy and cybersecurity concerns, providers will likely face challenges in examining patients via digital health platforms versus in-person office visits. In some cases, the inability to physically examine the patient may lead to misdiagnosis of the patient’s health condition, or even improper prescription of the patient’s medication.

According to a recent analysis conducted by CRICO, a leader in medical professional liability, 66% of telemedicine-related claims received from 2014 through 2018, were diagnosis related.

Additionally, ineffective communication during telehealth visits may lead to medical malpractice concerns. Practitioners may not effectively treat the patient if they do not establish an appropriate physician-patient relationship, and obtain an adequate assessment of the patient’s medical condition and detailed medical history.

Likewise, there are certain benefits to in-person communication that cannot be captured via telecommunications, especially telephonic communications.

Furthermore, certain technological limitations in software or glitches in internet servers may lead to diagnostic errors. Digital shortcomings may occur due to the nature of the technological platforms and may not necessarily occur as a result of practitioner’s failed medical judgment, but there is still risk for legal liability.

Best Practices for Providers

Providers must be vigilant and ensure effective virtual visits with their patients. Best practices include educating patients on what their telehealth visit consists of and providing informed consent, detailing any potential risks associated with the telehealth services as well as the security measures involved.

Additionally, it is imperative that providers accurately document the virtual health-care visit and maintain proper patient records. Adequate medical record documentation ensures patient confidentiality and standards of care are met, which protects providers against liability for failure to comply with the same.

In efforts to meet the duty of care to patients, providers should become familiar with their state laws surrounding telemedicine, as some states have specific requirements regarding patient medical history, written documentation, follow-up care, and emergency provisions.

Providers may implement the suggested measures among others in order to limit their exposure to medical malpractice suits associated with the provision of telehealth services. As providers become more equipped at mitigating risks, the benefits of providing access to care across various digital platforms will lead to more opportunities for health-care advancement.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Lindsay Lowe is an attorney at Wolfe Pincavage, a boutique law firm in Florida. She focuses on public health and health-care law, her practice encompasses transactional, regulatory, and managed care matters. She has represented providers in licensure, fraud, waste and abuse, and compliance matters.